Prosecution in Roger Clemens trial dealt another blow by judge

AP fileFormer Major League Baseball pitcher Roger Clemens leaves the E. Barrett Prettyman U.S. Court House last week.

By JOSEPH WHITE
WASHINGTON — A short clip from Mike Wallace's "60 Minutes" interview with Roger Clemens in 2008 provided just enough ambiguity for the judge to rule it out, hurting the government's hopes of proving one piece of its case against the 11-time All-Star pitcher.

Lawyers for Clemens also laid down in writing their reasons to strike testimony from Andy Pettitte, while the jury on Monday heard federal agents discuss the handling of physical evidence and the trial entered its fourth week.

The crux of the trial focuses on whether Clemens lied to Congress when he said he had never used human growth hormone and steroids, but the government is also trying to prove numerous other alleged untruths from Clemens during a 2008 congressional hearing and the deposition that preceded it.

Among those other charges: That Clemens obstructed Congress when he said he "no idea" that former Sen. George Mitchell wanted to talk with him while putting together the landmark 2007 Mitchell Report on performance-enhancing drug use in baseball. Clemens is named prominently in the report as having received steroids and HGH injections from his former strength coach, Brian McNamee.

Clemens said on "60 Minutes" that he didn't speak to Mitchell's investigators because his lawyer advised against it. Prosecutor Courtney Saleski said that contradicts what Clemens told Congress and that it's "just unbelievable" that Clemens didn't know of Mitchell's request.

But U.S. District Judge Reggie Walton said it was possible Clemens was told generally by lawyers not to talk to Mitchell, without actually informing the pitcher that Mitchell wanted to talk to him. The judge also cited the subtle difference between Mitchell's "investigators" and Mitchell himself and then reiterated his overall concern that playing the clip could run afoul of Clemens' attorney-client privilege. The judge ruled the clip couldn't be played.

Meanwhile, the government is fighting against another potential setback regarding Pettitte, Clemens' former teammate and longtime friend. Pettitte conceded on the stand last week that there is a 50-50 chance he misunderstood a conversation 12 years ago when he thought he heard Clemens admit to using HGH.

Clemens' lawyers say that's too tenuous. They want the judge to tell the jury to ignore Pettitte's testimony about the conversation.

"The court should not allow the jury to consider an alleged 'admission' that has all the weight of a coin flip," Clemens' lawyers wrote in a filing.

The defense is expected to respond with a filing of its own before the judge rules.

The two witnesses Monday were a pair of federal agents, Jeff Novitzky of the Food and Drug Administration and John Longmire of the FBI. Novitzky began investigating connections between drugs and sports as an agent with the Internal Revenue Service.

Both talked about the chain of custody of evidence — needles, syringes, gauze and other items — some of which McNamee says were used to inject Clemens with a steroid. Clemens' lawyers focused on the condition of the evidence when it was handed over to authorities by McNamee, emphasizing a photo of the items bunched in a bag with a beer can rather than the photos of the items neatly arranged for classification once they were in the hands of the IRS and later the FBI.

The government is expected to show that Clemens' DNA was found among the items. Clemens' lawyers claim the evidence was tainted and/or contaminated.

The start of court Monday marked Day 11 of a trial that was still on its third witness. Walton opened the proceedings by again expressing his concerns about the slow pace and said he might impose time limits if the lawyers persist in what he called "unnecessary questioning."

The judge's efforts didn't bear much fruit. The morning session began late because of a misunderstanding over a juror's prior obligation. Once it was under way, there were again numerous delays for bench conferences, including a 22-minute discussion between Walton and the lawyers over a set of questions posed to Novitzky by members of the jury.

The trial suffered another delay when the sound system in the courtroom malfunctioned, prompting the judge to call for a technician. The court also endured rudimentary sports questions asked to Longmire, such as: "For those of us who aren't baseball fans, what is Yankee Stadium?" and "Is Sports Illustrated a magazine?"

The government also had to introduce an extra exhibit when Longmire had trouble recalling the timeline of events in the investigation.